Research › Search › Judgment

Delhi High Court · body

2007 DAILYLAW 2481 (DEL)

MOHINDER KUMAR SHARMA v. ASHOK NANDA

2007-10-01

Sanjiv Khanna

body2007
( 1 ) THIS Appeal is directed against the order dated 7th March, 2007 passed by the learned Single Judge whereby the appellant-defendant was proceeded ex-parte in the Suit for specific performance filed by the respondent-plaintiff. ( 2 ) SUBSEQUENTLY, two other applications bearing IA Nos. 4716/2006 and 5355/2006 were filed by the defendants in the suit but vide Order dated 23rd July, 2007, the same were disposed of with a direction that the appellant-defendant could join proceedings at that stage entitling him to only cross examine the witnesses of the plaintiff-respondent. ( 3 ) THE suit was instituted by the respondent seeking for a decree of specific performance on the basis of Agreement to Sell dated 21st October, 2004 and also for permanent injunction. In the aforesaid suit, summons were issued with an ad interim injunction directing for maintenance of status quo with regard to the possession of the suit property. The summons were returnable on 14th December, 2005. On 14th December, 2005, the learned Single Judge recorded that the defendants had entered appearance in person in the Court. They were granted four weeks time to file their written statement. Time was also granted to the plaintiff-respondent to file replication before the next date. Interim injunction was directed to be continued. The matter was fixed to be listed before the Joint Registrar on 3rd March, 2006 and before the Court on 3rd April, 2006. The Joint Registrar vide order dated 3rd March, 2006 recorded that none appeared for the defendants and written statement had not been filed, therefore, the matter should be placed before the Court on 3rd April, 2006, the date already fixed. ( 4 ) HOWEVER, it transpires from the record that an application-IA No, 2737/2006 was filed by the respondent under Order VIII, Rules 1 and 10 of the CPC praying that the appellant-defendants had failed to file their written statements and they should be proceeded ex-parte. ( 5 ) WE have also seen the original application, which is available on the suit file. Learned counsel for the respondent has made an endorsement therein that none had appeared on the last date of hearing on 3rd March, 2006 and therefore, no copy of the application has been served and sent to the appellant-defendants. The aforesaid endorsement in our considered opinion was uncalled for and incorrect. Learned counsel for the respondent has made an endorsement therein that none had appeared on the last date of hearing on 3rd March, 2006 and therefore, no copy of the application has been served and sent to the appellant-defendants. The aforesaid endorsement in our considered opinion was uncalled for and incorrect. The respondent-plaintiff wanted to move an application behind the back and knowledge of the appellant-defendants and take them by surprise. Whenever an application is filed a copy of the same must be supplied to the other side-non-applicant. It is established from the records that no copy of the application was served to the other side. The matter was taken up before the Court on a date that was not fixed and without intimation and advance notice to the appellant and by Order dated 7th March, 2006, it was directed that the defendants will be proceeded ex parte. ( 6 ) HAVING gone through the records, we are of the considered opinion that the aforesaid Order dated 7th March, 2006 is required to be recalled and set aside as the same was passed without properly appreciating records of the case and without service on the appellant-defendants. There could be some negligence on the part of the defendants-appellants to file their written statement within the stipulated period of time as given by the Court, however, they should have been served with the copy of the application and given an opportunity before an order under Order VIII, Rules 1 and 10, CPC is passed. Matter was not listed before the Court on 7th March, 2006 and the said order was passed without hearing them and without giving them opportunity to be present at the time of the hearing. Moreover the court file indicates that written statement was filed by the appellants on 29th March, 2006 and, therefore, the appellant could not have been penalized in the said manner. The case is at the initial stage and the subject matter of the Suit is an immovable property which is owned by the appellant-defendants. It also appears that the default was that of the counsel and not of the appellant-defendants themselves. The appellant-defendants had engaged a counsel who had also filed his Power of Attorney. The case is at the initial stage and the subject matter of the Suit is an immovable property which is owned by the appellant-defendants. It also appears that the default was that of the counsel and not of the appellant-defendants themselves. The appellant-defendants had engaged a counsel who had also filed his Power of Attorney. ( 7 ) ACCORDINGLY, we set aside the Order dated 7th March, 2006 and consequently the subsequent Order dated 23rd July, 2007 and direct that written statement filed by the appellant-defendants should be taken on record and thereafter the learned Single Judge shall proceed in the matter in accordance with law by fixing a date for framing of issues and for admission/denial of documents. ( 8 ) THE Appeal is allowed in terms of the aforesaid order. ( 9 ) THE matter shall now be listed before the learned Single Judge on 22nd october, 2007 for further orders.